Is it ethical to use a dead man's sperm to father a child? Experts are calling for a consensus on policies surrounding this question, which currently vary widely across the country.

It has been possible for a few decades to obtain a man’s sperm after his death and use it to fertilize an egg. Today, requests for postmortem sperm retrieval (PMSR) are growing, yet the United States has no guidelines governing the retrieval of sperm from deceased men, said Dr. Larry Lipshultz, a urologist at Baylor College of Medicine in Texas.

In the absence of government regulations, medical institutions should come up with their own rules so they can handle the time-sensitive and ethically questionable procedures, Lipshultz argued in an editorial published June 5 in the journal Fertility and Sterility.

Requests for PMSR can come from the wife or parents of a young man who suddenly died in an accident before having a chance to leave a child, and requests can also come from living, terminally ill men who wish to preserve sperm to be used after death.

But the institutions trying to draft a protocol for these situations face a number of ethical concerns. For example, has the deceased consented to have his sperm used for reproduction after he’s gone? Could just anybody request to obtain his sperm? Is it in the best interest of the child to be brought into the world without having a father?

What everyone seems to agree on is that the man’s wishes should be clear. "The core principle is not to reproduce anyone without their permission," said Arthur Caplan,head of the division of medical ethics at NYU Langone Medical Center in New York. (He was not involved in the editorial published in Fertility and Sterility).

Some institutions follow this principle strictly, and require written, informed consent from the deceased before they will retrieve sperm cells. However, many of the requests come in cases in which a man died unexpectedly, without ever having thought about giving explicit consent.

In the absence of written consent, some institutions may still honor the request if there is evidence that sperm retrieval may have been the wish of the deceased. For example, if a couple had been trying to conceive or had talked about it with friends and family, it can imply consent, Lipshultz told LiveScience.

Lipshultz and his colleagues recently published a study suggesting that, despite common assumptions, most men would agree to reproduce after death. The study found that 85 percent of men visiting a sperm bank provided consent for postmortem sperm use. Men in relationships, and those who were already fathers, were more likely to consent to postmortem use, according to the findings.

Another issue that must be considered in PMSR requests is the motivation of the requesting party. Experts say the grieving family members may not be able to make rational decisions under the circumstances. This has led the experts to recommend a mandatory waiting time of a few months to one year before using the retrieved sperm for conception, Lipshultz said.

Caplan noted that there are also ethical concerns that come with denying a request for PMSR. For example, "it would be limiting family wishes to continue their lineage, and the concern that outsiders should not determine who can reproduce," he said.

PMSR is currently illegal in France, Germany, Sweden and other countries, even with written consent from the deceased. In the United Kingdom, it can be done if there is written consent, and in Israel, the sperm can be retrieved, but then a judge has to decide whether it can be used.

In the United States, some requests for sperm retrieval have been approved under the rules that govern organ donation. The Universal Anatomical Gift Act of 2006 allowed next of kin to consent to the retrieval of organs and tissues unless there is evidence that the deceased would not have consented. In 2006, a judge ruled that the anatomical gift, including the gift of sperm, can be retrieved at the consent of the donor's parents, as long as the donor did not explicitly refuse to donate.

In a new analysis of nine American institutions that do have guidelines for PMSR, researchers at Stanford University identified elements of a working protocol that other institutions could use to devise their own guidelines. These elements aim to standardize issues such as what constitutes evidence of consent, and who is eligible to make the request. The article will be published in an upcoming issue of the journal Fertility and Sterility.

In the Stanford study, 60 percent of institutions that the researchers contacted said they did not have a PMSR protocol. Lipshultz said this shows that, nationally, institutions that may be called on to retrieve sperm from deceased men may be vulnerable to liability.
Researchers say that regardless of the details of any protocol, the ultimate goal is to establish policies that respect the wishes of the deceased and that are in the best interest of the family and the future child.

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